On November 26, 2013, the California Supreme Court granted review of California Building Industry Association v. Bay Area Air Quality Management District (“CBIA v. BAAQMD”) to settle the following issue: Under what circumstances, if any, does CEQA require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?
Prior to the CBIA case, this issue most recently arose in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. There, the petitioner argued that the EIR for a real estate development project failed to address the impacts that future sea level rise could have on the project. The court disagreed that the EIR needed to address this issue, stating that “the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.” The court concluded that identifying the effects on a project and its users of locating the project in a particular environmental setting was neither required by CEQA nor consistent with the statute’s legislative purpose. The court found that Guidelines section 15126.2, which encourages such analysis, was unauthorized by the CEQA statute and therefore invalid. Section 15126.2 would require analysis of the seismic hazard to future occupants of a subdivision astride an active fault line, or the effect of locating development in a floodplain or on a coastline.
In CBIA v. BAAQMD, the California Building Industry Association challenged the Bay Area Air Quality Management District’s significance thresholds for receptors affected by certain air pollutants as unauthorized by CEQA. These thresholds establish significance levels for certain air pollutants for both new sources (projects) and new receptors (residents and workers brought into the area as a result of the project). CBIA argued that the receptor thresholds were invalid under Ballona because the thresholds could require an EIR based solely on the effects of the existing environment on a proposed project and its occupants. The District argued that it made “no sense to require analysis of the health risks to residents if a freeway is built next to them, but not to require analysis of the exact same risks if new homes are built next to an existing freeway.” The District also argued that disregarding the effect of the environment on people who will occupy a new development is contrary to CEQA’s purpose of providing “a decent home and suitable living environment for every Californian.”
The court considered CBIA’s challenge a facial one, and held that BAAQMD’s thresholds were not invalid on their face because case law did not bar their application in all or even most cases. The court stated that it did not need to decide whether Ballona had been correctly decided because the thresholds could be used to determine not just the effect of a project on project receptors, but also could be used to evaluate the increase in pollutants from a project itself.
The parties will file their opening briefs with the Supreme Court in early 2014.
[Case No. S213478]